128 F.

3d 1431
122 Ed. Law Rep. 391, 97 CJ C.A.R. 2724

Jay FOWLER and Barbara Fowler, parents and next friend of

Michael Fowler, Plaintiffs--Appellees,
v.
UNIFIED SCHOOL DISTRICT NO. 259, SEDGWICK
COUNTY, KANSAS,
Defendant--Appellant.
United States of America; National School Boards
Association; Kansas Advocacy & Protective Services, Inc.;
Most Reverend James P. Keleher, Archdiocese of Kansas City,
Kansas; Most Reverend Stanley G. Schlarman, Diocese of
Dodge City, Kansas; Most Reverend George K. Fitzsimons,
Diocese of Salina, Kansas; Most Reverend Eugene J. Gerber,
Diocese Of Wichita, Kansas; National Association of the
Deaf; National Cued Speech Association; The American
Society for Deaf Children; And Kansas Association of the
Deaf, Amici Curiae.
Nos. 95-3373, 95-3400.

United States Court of Appeals,

Tenth Circuit.
Nov. 4, 1997.

Roger M. Theis and Thomas R. Powell of Hinkle, Eberhart & Elkouri,

L.L.C., Wichita, KS, on the briefs, for Defendant-Appellant.
Mary Kathleen Babcock, Timothy B. Mustaine, and Martha Aaron Ross
of Foulston & Siefkin, L.L.P., Wichita, KS, on the briefs, for PlaintiffsAppellees.
William Kanter and Frank A. Rosenfeld, Civil Division, Department of
Justice, Washington, DC, on the briefs, for amicus curiae, the United
States of America.

Gwendolyn H. Gregory, Deputy General Counsel, August W. Steinhilber,

General Counsel, and Thomas A. Shannon, Executive Director, National
School Boards Association, Alexandria, VA, on the briefs, for amicus
curiae, the National School Boards Association.
Sherry C. Diel, Kansas Advocacy & Protective Services, Inc., Topeka,
KS, on the briefs, for amicus curiae, the Kansas Advocacy & Protective
Services, Inc.
J. Francis Hesse, Redmond & Nazar, L.L.P., Wichita, KS, on the briefs,
for amicus curiae, Most Reverend James P. Keleher, Archdiocese of
Kansas City, KS; Most Reverend Stanley G. Schlarman, Diocese of
Dodge City, KS; Most Reverend George K. Fitzsimons, Diocese of
Salina, KS; Most Reverend Eugene J. Gerber, Diocese of Wichita, KS.
Douglas R. Cyrex, Gonzales, LA, Marc P. Charmatz and Sarah S. Greer,
National Association of the Deaf Law Center, Silver Spring, MD, on the
briefs, for amicus curiae, the National Association of the Deaf, National
Cued Speech Association, The American Society for Deaf Children, and
Kansas Association of the Deaf.
Before ANDERSON, LUCERO, and MURPHY, Circuit Judges.
STEPHEN H. ANDERSON, Circuit Judge.

In February, 1997, we held that the Individuals with Disabilities Education Act,
20 U.S.C. 1400-1420 ("IDEA"), and the regulations thereunder, as well as
Kansas law, required the defendant, Unified School District No. 259, to at least
partially pay for an on-site sign language interpreter for the plaintiff, Michael
Fowler, a deaf child voluntarily attending a private school. Fowler v. Unified
Sch. Dist. No. 259, 107 F.3d 797 (10th Cir.1997), cert. granted and vacated, --U.S. ----, 117 S.Ct. 2503, 138 L.Ed.2d 1008 (1997). Both sides filed petitions
for certiorari, which the Supreme Court granted in order to vacate our decision
and remand the case to us "for further consideration in light of the Individuals
With Disabilities Education Act Amendments of 1997." Unified Sch. Dist. No.
259 v. Fowler, --- U.S. ----, 117 S.Ct. 2503, 138 L.Ed.2d 1008 (1997); Fowler v.
Unified Sch. Dist. No. 259, --- U.S. ----, 117 S.Ct. 2503, 138 L.Ed.2d 1008
(1997) (same).1 We directed the parties to submit simultaneous briefs on the
effect of those Amendments on this case, including the impact, if any, of the
effective date of those Amendments and whether this case should be remanded
to the district court for further factual findings. We have considered the parties'
briefs, as well as the amicus brief filed by the United States, and we again

reverse the district court's decision and remand for further proceedings.
BACKGROUND
2

We need not set out in detail the facts or procedural history of this case, as they
were stated in our prior panel decision. We only present essential facts as
necessary for us to address the effect of the IDEA Amendments on this case.

Michael Fowler is a profoundly deaf twelve-year-old boy who, because he

requires specially designed instruction for this condition, qualifies as a child
with disabilities under Part B of the IDEA. He is also gifted, having been found
by the school district to be "of very superior intellectual capacity." Fowler v.
Unified Sch. Dist. No. 259, 900 F.Supp. 1540, 1541 (D.Kan.1995), rev'd, 107
F.3d 797 (10th Cir.), cert. granted and vacated, --- U.S. ----, 117 S.Ct. 2503, 138
L.Ed.2d 1008 (1997). After he spent four years at the public school where the
District elected to cluster hearing-impaired students, Michael's parents
voluntarily placed him in a private nonsectarian school where they felt his
intellectual needs would be better met. They requested that the District provide
interpretive services to Michael on site. The District denied the request. That
denial was upheld through administrative proceedings.

When the Fowlers appealed the denial to the district court, the district court
held that the District must pay the entire cost of such services. On appeal from
that decision, we held that the District must pay "an amount up to, but not more
than, the average cost to the District to provide that same service to hearingimpaired students in the public school setting." Fowler, 107 F.3d at 807-08. We
derived that obligation from both the IDEA and its regulations and from Kansas
statutory law. Because the 1997 IDEA Amendments address the scope of
services to students voluntarily placed in private schools, the Supreme Court
vacated our decision and remanded it to us to consider the effect of those
Amendments.
I. IDEA:

The IDEA provides federal grants to states, which states then use as part of the
funds they give to local educational agencies to assist such agencies in
educating students with disabilities. States electing to participate in this system
of grants must establish and have "in effect a policy that assures all children
with disabilities the right to a free appropriate public education." 20 U.S.C.
1412(1). Among the many areas of contention since the IDEA's passage has
been the extent to which children whose parents have voluntarily placed them

in private schools may participate in special education programs and services

provided pursuant to the Act, and, more specifically, what obligation, if any, a
school district has to pay for such services.
6

Prior to its recent amendment, the IDEA provided that, with respect to students,
like Michael, voluntarily attending private schools, each state must:

7 forth policies and procedures to assure-that, to the extent consistent with the
set
number and location of children with disabilities in the State who are enrolled in
private elementary and secondary schools, provision is made for the participation of
such children in the program assisted or carried out under this subchapter by
providing for such children special education and related services.
8

1413(a)(4)(A). While the IDEA regulations did make clear that if a "free
appropriate education" ("FAPE") was available to a student, and the parents
voluntarily placed the student in a private school, the local educational agency
was not obligated to pay for the full cost of the student's education, 34 C.F.R.
300.403(a), what was unclear under the Act and its regulations was the extent
of the agency's obligation to make special education services available to such a
student. Compare Cefalu v. East Baton Rouge Parish Sch. Bd., 103 F.3d 393,
withdrawn and superseded on rehearing, 117 F.3d 231 (5th Cir.1997) and
Russman v. Sobol, 85 F.3d 1050 (2d Cir.1996), cert. granted and vacated, --U.S. ----, 117 S.Ct. 2502, 138 L.Ed.2d 1008 (1997) with K.R. v. Anderson
Community Sch. Corp., 81 F.3d 673 (7th Cir.1996), cert. granted and vacated, -- U.S. ----, 117 S.Ct. 2502, 138 L.Ed.2d 1007 (1997) and Goodall v. Stafford
County Sch. Bd., 930 F.2d 363 (4th Cir.1991).

The IDEA was recently amended by Congress, so that now the Act provides as
follows for children enrolled by their parents in private schools:

10

(A) CHILDREN ENROLLED IN PRIVATE SCHOOLS BY THEIR

PARENTS.-

11

(i) IN GENERAL.-To the extent consistent with the number and location of
children with disabilities in the State who are enrolled by their parents in private
elementary and secondary schools, provision is made for the participation of
those children in the program assisted or carried out under this part by
providing for such children special education and related services in accordance
with the following requirements, unless the Secretary has arranged for services
to those children under subsection (f):

(I) Amounts expended for the provision of those services by a local educational
12

agency shall be equal to a proportionate amount of Federal funds made available

under this part.
13 Such services may be provided to children with disabilities on the premises of
(II)
private, including parochial, schools, to the extent consistent with law.
14

(ii) CHILD-FIND REQUIREMENT.-The requirements of paragraph (3) of this

subsection (relating to child find) shall apply with respect to children with
disabilities in the State who are enrolled in private, including parochial,
elementary and secondary schools.

....
15
16

(C) PAYMENT FOR EDUCATION OF CHILDREN ENROLLED IN

PRIVATE SCHOOLS WITHOUT CONSENT OF OR REFERRAL BY THE
PUBLIC AGENCY.-

17

(i) IN GENERAL.Subject to subparagraph (A), this part does not require a local
educational agency to pay for the cost of education, including special education
and related services, of a child with a disability at a private school or facility if
that agency made a free appropriate public education available to the child and
the parents elected to place the child in such private school or facility.

18

Individuals with Disabilities Education Act Amendments of 1997, Pub.L. No.

105-17, tit.1, 612(a)(10)(A), (C), 111 Stat. 37, 62-63 (1997) (emphasis added)
[hereinafter Amendments]. There are no final regulations yet implementing the
Amendments, although the Department of Education has recently issued
proposed regulations, which are now subject to public comment. See
Assistance to States for the Education of Children with Disabilities, 62
Fed.Reg. 55026 (1997) (proposed Oct. 22, 1997).

19

The Amendments specified they would "take effect upon the enactment of this
Act," which was June 4, 1997. Amendments, tit.II, 201(a)(1). The
Amendments nowhere state that they apply retroactively, and courts addressing
the effect of the Amendments have held they are prospective only. See Heather
S. v. Wisconsin, 125 F.3d 1045, 1062 (7th Cir.1997); K.R. v. Anderson
Community Sch. Corp., 125 F.3d 1017, 1019 n. * (7th Cir. 1997); CypressFairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d 245, 247 n. 1 (5th
Cir.1997). This is completely consistent with the Supreme Court's repeated
invocation of the " 'presumption against retroactive legislation [that] is deeply
rooted in our jurisprudence.' " Hughes Aircraft Co. v. United States, --- U.S. ---, ----, 117 S.Ct. 1871, 1876, 138 L.Ed.2d 135 (1997) (quoting Landgraf v. USI

Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 1496-97, 128 L.Ed.2d 229
(1994)).
20

The District argues, however, that the legislative history of the IDEA
Amendments shows that 612(a) merely "clarified" the IDEA and did not
change existing federal law. Thus, it argues that there is no issue of retroactivity
in this case, because the Amendments simply explain the proper interpretation
of the prior version of the statute, and, accordingly, argues that our panel
decision was incorrect under both the pre-Amendments and post-Amendments
IDEA.

21

The legislative history upon which the District relies is the following:

22

Section 612 [20 U.S.C. 1412] contains clarifications of current law. ...

23

....

24

The bill makes a number of changes to clarify the responsibility of public

school districts to children with disabilities who are placed by their parents in
private schools. These changes should resolve a number of issues that have
been the subject of an increasing amount of litigation in the last few years.
First, the bill specifies that the total amount of money that must be spent to
provide special education and related services to children in the State with
disabilities who have been placed by their parents in private schools is limited
to a proportional amount (that is, the amount consistent with the number and
location of private school children with disabilities in the State) of the Federal
funds available under part B.

25

H.R.Rep. No. 105-95, at 90, 92-93 (1997), reprinted in 1997 U.S.C.C.A.N. 78,
88, 90 (July 1997 Supp.) (emphasis added). The Senate Report contains
identical language. See S.Rep. No. 105-17 (1997), 1997 WL 244967
(Leg.Hist.).2

26

We have observed that Congress may have various motivations when it amends
a statute. " 'Congress may amend a statute simply to clarify existing law, to
correct a misinterpretation, or to overrule wrongly decided cases.' " O'Gilvie v.
United States, 66 F.3d 1550, 1559 (10th Cir.1995) (quoting Wesson v. United
States, 48 F.3d 894, 901 (5th Cir.1995)), aff'd, --- U.S. ----, 117 S.Ct. 452, 136
L.Ed.2d 454 (1996). It is hazardous, however, to assume from the enactment of
a "clarifying" amendment that Congress necessarily was merely restating the
intent of the original enacting Congress. "[T]he view of a later Congress cannot

control the interpretation of an earlier enacted statute." O'Gilvie v. United

States, --- U.S. ----, ----, 117 S.Ct. 452, 458, 136 L.Ed.2d 454 (1996); see also
Wesson, 48 F.3d at 901 (" '[T]he views of a subsequent Congress form a
hazardous basis for inferring the intent of an earlier one.' ") (quoting United
States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960));
Hawkins v. United States, 30 F.3d 1077, 1082 n. 6 (9th Cir.1994) (noting that
statutory amendments do not necessarily "indicate that Congress gleaned the
true intent of previous Congresses"). Additionally, we have observed that
"using [an] amendment to interpret Congress' intent [years ago] is a
questionable practice, particularly because of the long lapse of time and
because the legislative history of both the original statute and the amendment
are not enlightening." O'Gilvie, 66 F.3d at 1559. In this case, the length of time
is not as long-22 years here compared to 35 or more years in O'Gilvie-but it is
long enough to make us reluctant to presume that Congress in 1997 was
authoritatively interpreting and clarifying what Congress in 1975 intended.
27

In any event, the touchstone is Congressional intent-absent a clear indication

that Congress intended the Amendments merely to clarify the proper
interpretation of its prior Act, we consider the Amendments to implement a
change in the Act, and we apply them only to events occurring after the Act's
effective date. As the Supreme Court has observed:

28

Congress, of course, has the power to amend a statute that it believes we have
misconstrued. It may even, within broad constitutional bounds, make such a
change retroactive and thereby undo what it perceives to be the undesirable past
consequences of a misinterpretation of its work product. No such change,
however, has the force of law unless it is implemented through legislation.
Even when Congress intends to supersede a rule of law embodied in one of our
decisions with what it views as a better rule established in earlier decisions, its
intent to reach conduct preceding the "corrective" amendment must clearly
appear.

29

Rivers v. Roadway Express, Inc., 511 U.S. 298, 313, 114 S.Ct. 1510, 1519, 128
L.Ed.2d 274 (1994).

30

We therefore hold that our prior interpretation of the pre-Amendments IDEA,

based as it was upon a careful analysis of the Act and its implementing
regulations, applies to the parties in this case with respect to conduct occurring
prior to June 4, 1997. See Amos v. Maryland Dept. of Public Safety &
Correctional Servs., 126 F.3d 589, 603 n. 8 (4th Cir.1997) (noting that
"Congress' subsequent amendment [of the IDEA] ... in no way undermines the
reasoning of [a prior case]" interpreting an ambiguous provision of the IDEA).

Thus, up to June 4, 1997, the District is obligated to pay for interpretive

services for Michael at his private school an amount up to, but not more than,
the average cost to the District to provide that same service to hearing-impaired
students in the public school setting.
31

From June 4 onward, the Amendments apply, which we now endeavor to

interpret. Substantively, these Amendments appear to provide as follows: if the
local educational agency offers FAPE to a child whose parents subsequently
voluntarily place him or her in a private school, the agency is not required to
pay for the cost of the child's education, including any special education and
related services.3 For such students, the local educational agency's sole
obligation is to spend on such students for their "participation" in "special
education and related services," "a proportionate amount of Federal funds,"
which amount is apparently to be derived from considering the "number and
location" of such students compared to the total population of students requiring
special education and related services. Amendments, tit. I, 612(a)(10)(A).4
Thus, the state need not spend any of its own funds to pay for such services; it
need only allocate a portion of its Federal funds.

32

The Act does not make clear, however, whether an equal share of the Federal
funds must be allocated for each disabled child enrolled in a private school, or
whether the proportionate amount must be allocated for disabled private school
students collectively. In the latter case, any particular disabled private school
student might receive an amount different from his or her individual
proportionate share, and, conceivably, could receive nothing. Moreover, it is
not clear whether the local educational agency must spend a proportionate share
of Federal funds on all special education and related services needed by private
school disabled students, or whether it has discretion to determine which
services it will provide to which students.5 While we hope that the Department
of Education's final regulations will provide some guidance, in the interim we
leave it to the district court to initially determine the parameters of the District's
obligation to Michael after June 4, 1997. In any event, the calculation of
Michael's share of the "proportionate share" of the Federal funds made
available to the District requires further factual findings necessitating a remand
to the district court.6
II. Kansas Law:

33

The Fowlers sought the provision of interpretive services under both the IDEA
and Kansas law. "State standards that impose a greater duty to educate disabled
children, if they are not inconsistent with federal standards, are enforceable in
federal court under the IDEA." Seattle Sch. Dist. No. 1 v. B.S., 82 F.3d 1493,

1499 n. 2 (9th Cir.1996). In our prior panel decision, we held that under Kansas
law, "construed in light of our interpretation of the federal regulations, Michael
is entitled to no more than he is under the IDEA and its regulations: the
provision of an interpreter on-site at [his private school] at a cost no greater
than the average cost of providing hearing-impaired students with interpretive
services at public schools." Fowler, 107 F.3d at 810.
34

While the Supreme Court's decision to vacate our prior panel decision was
based upon amendments to the IDEA, its decision also necessarily vacated our
holding under Kansas law. We now consider whether the IDEA Amendments
affect our previous analysis of Kansas law.

35

Kan. Stat. Ann. 72-5393 provides as follows:

36 school district which provides auxiliary school services to pupils attending its
Any
schools shall provide on an equal basis the same auxiliary school services to every
pupil, whose parent or guardian makes a request therefor, residing in the school
district and attending a private, nonprofit elementary or secondary school whether
such school is located within or outside the school district.... Speech and hearing
diagnostic services and diagnostic psychological services, if provided in the public
schools of the school district, shall be provided in any private, nonprofit elementary
or secondary school which is located in the school district. Therapeutic
psychological and speech and hearing services and programs and services for
exceptional children, which cannot be practically provided in any private, nonprofit
elementary or secondary school which is located in the school district, shall be
provided in the public schools of the school district, in a public center, or in mobile
units located off the private nonprofit elementary or secondary school premises as
determined by the school district; and, if so provided in the public schools of the
school district or in a public center, transportation to and from such public school or
public center shall be provided by the school district.
37

"Auxiliary services" include "therapeutic psychological and speech and hearing

services" and "programs and services for exceptional children." Kan. Stat. Ann.
72-5392(b). The term "exceptional children" is defined as school age persons
who "differ in physical, mental, social, emotional or educational characteristics
to the extent that special education services are necessary to enable them to
receive educational benefits in accordance with their abilities or capacities."
72-962(f). They include "gifted children." 72-962(g).

38

As we observed in our prior panel opinion, there is no Kansas case law

interpreting these statutes, and, in particular, the statute's directive to provide an
"auxiliary service" at the private school site on an "equal basis" unless it cannot

be "practically provided" there. We concluded before that cost is relevant to

determining whether a service can be "practically provided" on an "equal
basis." The District argues that, because the IDEA Amendments have rendered
our interpretation of federal law "wrong," our interpretation of Kansas law, read
in light of our interpretation of the IDEA and its regulations, is also wrong.
However, as we have held above, we do not view our interpretation of the
IDEA prior to the 1997 Amendments, as wrong. We believe it was a reasonable
interpretation of the statute and its regulations. The 1997 Amendments have
changed the law, and the question now is whether our interpretation of Kansas
law is inconsistent with the 1997 Amendments. We discern no inconsistency
between our prior interpretation of Kansas law and the 1997 Amendments.
39

As indicated above, the Amendments make it clear that under the IDEA, states
need not spend their own money to provide special education and related
services to voluntarily placed private school students, and they need not pay the
cost of education, including special education and related services, to such
students to whom FAPE has been offered. Rather, their only obligation is to
make available to such students a proportionate amount of their Federal funds.
However, nothing prevents states from voluntarily providing more, from their
own funds. Thus, we reject the argument that it is inconsistent with the 1997
Amendments for Kansas law to provide more for disabled private students than
its obligations under the IDEA. And while the Fowlers argue that we have
taken an unnecessarily restrictive view of the state statutes, they point to
nothing which suggests that our prior analysis of the cost limitations on the
provision of services at private school sites, based as it was upon a careful
review of the Kansas State Plan for Special Education Article XII and
provisions in the Plan which were similar to the IDEA regulations then in
effect, is erroneous.

40

We therefore hold, once again, that under Kansas law, Michael is entitled to the
provision of an interpreter on site at his private school at a cost no greater than
the average cost of providing hearing-impaired students with interpretive
services at public schools. We accordingly reverse and remand the decision of
the district court for further proceedings consistent with this opinion.
III. Attorney's Fees:

41

The IDEA, prior to its amendment, permitted the award of reasonable attorney's
fees "to the parents or guardian of a child or youth with a disability who is the
prevailing party." 20 U.S.C. 1415(e)(4)(B). The 1997 Amendments also
permit such an award. Amendments, tit.I, 615(i)(3). We have held that
"Congress intended the term 'prevailing party' to mean the same under

1415(e)(4)(B) as it does under 42 U.S.C. 1988." Urban v. Jefferson County

Sch. Dist. R-1, 89 F.3d 720, 728-29 (10th Cir.1996). Accordingly, "a plaintiff
'prevails' when actual relief on the merits of his claim materially alters the legal
relationship between the parties by modifying the defendant's behavior in a way
that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12, 113
S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). Nothing in the 1997 Amendments
suggests that this interpretation is erroneous.
42

We held before that the Fowlers prevailed, inasmuch as they will receive
partial, if not total, reimbursement for a sign language interpreter the District
initially completely refused to pay for or provide. The same result obtains up
until June 4, 1997, and the Fowlers will receive a presumably lesser amount,
but probably an amount still greater than zero, for the period after June 4. We
therefore hold that the Fowlers are prevailing parties and we remand to the
district court for a calculation of reasonable attorney's fees.

43

For the foregoing reasons, the decision of the district court is REVERSED and
the case is REMANDED for further proceedings consistent herewith.

Our decision was vacated along with all other cases with petitions for certiorari
pending before the Supreme Court which involved the same or similar issues as
the ones presented in this case

There was little discussion in the floor debates about the particular
Amendments at issue in this case. What there was is inconclusive on whether
legislators viewed the Amendments as implementing substantive changes.
Representative Castle, in endorsing the bill, stated that "[i]t contains a number
of important reforms that address some of [the] current law's unintended and
costly consequences.... This bill makes it harder for parents to unilaterally place
a child in elite private schools at public taxpayer expense, lowering costs to
local school districts." 143 Cong. Rec. H2498-04 at H2536 (daily ed. May 13,
1997) (emphasis added). The reference to "reforms" and making it "harder" to
place children in private schools suggests that Rep. Castle viewed the
Amendments as changing the current law
Senator Harkin, also in support of the bill, stated "the bill clarifies that public
agencies are required to spend a proportionate amount of IDEA funds on
special education and related services for disabled children enrolled in private
[schools]." 143 Cong. Rec. S4295-03 at S4300 (daily ed., May 12, 1997)
(emphasis added). He then stated that "the bill reiterates current policy
[referring apparently to the policy of the Department of Education as expressed

through its Office of Special Education Programs] that a public agency is not
required to pay for special education and related services at a private school if
that agency made a free appropriate public education available to the child." Id.
(emphasis added). Senator Harkin used the phrase "reiterates current policy"
when discussing the amendment which does, indeed, statutorily codify what
the Office of Special Education Programs thought the IDEA regulations already
provided. By contrast, he used the term "clarifies" when discussing the
amendment which removes ambiguity from a very ambiguous, and unclear, part
of the statute and regulations. This may suggest that he knew the difference
between reiteration of current law and amendment added in order to remove
ambiguity.
In any event, " '[i]nferences from legislative history cannot rest on so slender a
reed.' " Cipollone v. Liggett Group, Inc., 505 U.S. 504, 520, 112 S.Ct. 2608,
2619, 120 L.Ed.2d 407 (1992) (quoting United States v. Price, 361 U.S. 304,
313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960)).
3

The previous regulations stated that for a child offered FAPE, the local
educational agency was not required to "pay for the child's education" at a
private school the child voluntarily attended. 34 C.F.R. 300.403(a). The
agency was required, however, to "make [special education] services available."
Id. Now, the Amendments state that a child offered FAPE is not entitled to the
"cost of education, including special education and related services."
Amendments, tit. I, 612(a)(10)(C)(i) (emphasis added). Because this latter
section is explicitly made "[s]ubject to subparagraph (A)," which obligates
local educational agencies to spend a "proportionate amount of Federal funds"
on voluntarily placed private school students, we assume that 612(a)(10)(C)
of the Amendments is properly interpreted as providing that students offered
FAPE are not entitled to the full cost of their education, but that, as we explain
infra, they do share in a "proportionate amount" of Federal funds for special
education services

The proposed regulations define "proportionate amount" as "an amount that is

the same proportion of the [local educational agency's] total subgrant [under
Part B] ... as the number of private school children with disabilities ... residing
in its jurisdiction is to the total number of children with disabilities in its
jurisdiction." 300.453, 62 Fed.Reg. 55026, 55094 (1997). The proposed
regulations also contain a note indicating that state and local educational
agencies "are not prohibited from providing services to private school children
with disabilities in excess of those required by this part, consistent with State
law or local policy." Id

While we do not have final regulations yet to assist us in interpreting and

applying the Amendments, the Department of Education's proposed regulations

provide that local educational agencies have discretion to determine how each
disabled private school student shall share in the proportionate share of Federal
funds to which all such students are collectively entitled. Specifically, the
proposed regulations provide that, after consultation with representatives of
private school children, the local agency decides "(1) [w]hich children will
receive services ...; (2)[w]hat services will be provided; (3)[h]ow the services
will be provided; and (4)[h]ow the services provided will be evaluated."
300.454(b), 62 Fed.Reg. 55026, (1997)
Accordingly, it is possible that the proportionate share of Federal funds would
be zero for any particular private school disabled student. Arguments could be
made, based upon the language and structure of the Amendments, both in favor
of and against such a result.
For example, the Amendments make it clear that the "child-find" requirements
of the IDEA apply to private school disabled students. Amendments, tit.I,
612(a)(10)(A)(ii). Under the child-find provisions,
All children with disabilities residing in the State, including children with
disabilities attending private schools, regardless of the severity of their
disabilities, and who are in need of special education and related services, are
identified, located, and evaluated and a practical method is developed and
implemented to determine which children with disabilities are currently
receiving needed special education and related services.
612(a)(3)(A). On the one hand, one could argue there is no point to
specifying that the child-find requirements apply to private school children, if
there is no intent to provide some level of service to each such child. On the
other hand, the child-find provisions themselves could be interpreted to merely
require the identification of each disabled child to determine who currently
receives services, and not as an initial step towards providing services to each
child so identified.
Additionally, the proportionate share of Federal funds is apparently to be
allocated by reference to the "number and location " of private school students.
It is unclear why the location of such students would be relevant, if not to
permit the local educational agencies to take advantage of economies of scale.
On the other hand, the Act appears to address all private school students, and
does not evidently contemplate that some voluntarily placed private school
students will receive no services.
We express no opinion on whether a child whose proportionate share of the
Federal funds in fact turns out to be zero, or a sum substantially lower than

other students, could argue that his or her rights under the IDEA or, perhaps,
the constitution, are violated.
6

The District argues in its reply brief that the Fowlers lack "standing to litigate
how the District allocates [Federal] funds collectively for private school
students." Appellant's Reply Br. at 3. It also asserts that the district court lacks
subject matter jurisdiction over the matter. Id. at 3-4. The District provides no
detailed argument in support of those claims, other than to cite to virtually
identical pre- and post-Amendment provisions of the IDEA dealing with the
Secretary of Education's right to withhold funds from a state, which provisions
do not indicate that plaintiffs such as the Fowlers lack standing or that the
district court lacks jurisdiction
The proposed regulations just issued by the Department of Education state that
"[n]o private school child with a disability has an individual right to receive
some or all of the special education and related services that the child would
receive if enrolled in a public school." 300.454(a), 62 Fed.Reg. 55026,
(1997). The regulations further state that the due process procedures, including
the right to bring an action in court (i.e., the private right of action), "do not
apply to complaints that [a local educational agency] has failed to meet the
requirements [concerning the provision of services to private school children],
including the provision of services indicated on the child's IEP." 300.457(a),
62 Fed.Reg. 55026, (1997).
Thus, the proposed regulations appear to support the District's argument. They
do not affect the outcome of this case, however, because the regulations are not
final, and because it is unclear whether the denial of due process procedures is
consistent with the IDEA and its Amendments.